V.C. v. M.J.B. , 163 N.J. 200 ( 2000 )

LONG, J.,

concurring.¹

Sociologists who study the family have concluded that, like all social institutions, it has certain attributes or characteristics. Two of those are the stability of the parents’ relationship and parental nurturing. Ernest W. Burgess and Harvey J. Locke, The Family: From Institution to Companionship, 651 (1953); Lee E. Teitelbaum, Family History and Family Law 1985 Wis. L.Rev. 1135, 1142-43 (1985). A third characteristic identified by scholars is the family’s claim to autonomous privacy. Craig W. Christensen, If Not Marriage ? On Securing Gay & Lesbian Family Values by a “Simulacrum of Marriage”, 66 Fordham L.Rev. 1699, 1717 (1998). That privacy association spawned the family’s “awareness of itself as a precious emotional unit” demanding isolation from outside intrusion. Id. at 1718 (quoting Edward Shorter, The Making of the Modem Family, 227 (1975)). It also resulted in a concept of domestic privacy with an objective meaning; the family not only experienced itself as private, but was recognized as such by society. Teitelbaum, supra, 1985 Wisc. L.Rev. at 1144.

The dominant model of the American family, both emotionally and legally, is the nuclear family — “a social institution with a sort of corporate identity: a collective of husband, wife, and children.” Teitelbaum, supra, 1985 Wise. L.Rev. at 1138. Over time, because of the dominance of the nuclear family in our collective consciousness, the attributes of family life came to be associated with it to the exclusion of any other model:

The stability of the companionate couple and the sustenance of parental nurturing were to become the quintessential American “family values.” As a necessary corollary, in aid and protection of the values, came recognition of the family as an autonomous bastion of privacy. Although the nuclear family was merely the perceived repository of these valued characteristics, eventually it came to be viewed by many as though it represented a value on its own right.

[Christensen, supra, 66 Fordham L.Rev, at 1718.]

That is a critical point for we should not be misled into thinking that any particular model of family life is the only one that embodies “family values.” Those qualities of family life on which society places a premium — its stability, the love and affection shared by its members, their focus on each other, the emotional and physical care and nurturance that parents provide their offspring, the creation of a safe harbor for all involved, the wellspring of support family life provides its members, the ideal of absolute fealty in good and bad times that infuses the familial relationship (all of which justify isolation from outside intrusion)— are merely characteristics of family life that, except for its communal aspect, are unrelated to the particular form a family takes.

Those attributes may be found in biological families, step-families, blended families, single parent families, foster families, families created by modern reproductive technology, and in families made up of unmarried persons. What is required is the creation of “an intimate familial relationship that is stable, enduring, substantial and mutually supportive, ... one that is cemented by strong emotional bonds and provides deep and pervasive emotional security.” Dunphy v. Gregor, 136 N.J. 99, 115, 642 A.2d 372 (1994).

Generally, such a relationship is built on a commitment by the adults to live as a family, accompanied by the actuality of family life, involving the love, care, nurturance, protection, safety and education of the children in their care. The relationship that develops between children and those who function as their parents, within that setting, ordinarily creates a life-long bond between them.

That bond is not the result of the sexual orientation of the adults or of their marital status. It does not arise solely from biology or legal adoption. Rather, it is borne out of the daily toil parents engage in to keep their children healthy and safe from harm; out of the love and attention provided to the children; and out of the unconditional regard returned by the children to the parental figures. When the bond exists, the parents and the children become a family — an entity greater than the sum of its parts.

What is crucial is to realize that a .parent-child bond is not simply a court-bestowed determination for the purpose of resolving litigation. Certainly, it affects the status of custody and visitation litigation, but that is secondary. The finding of the existence of such a bond reflects that the singular emotional and spiritual connection, ordinarily only expected in the relationship of a legal parent and child, has been created between an adult and a child who are not related by blood or adoption. It is different from the bond between great friends or the bond between uncle and nephew, aunt and niece. It is the special connection between a parent and a child.

That there can be such a bond between a child and someone other than the child’s legal parent is clear. Mere legality, whether by way of biology or adoption, is not an exclusive determinant of the existence of a parent-child relationship:

It has been recognized that the psychological aspect of parenthood is more important in terms of the development of the child and its mental and emotional health than the coincidence of biological or natural parenthood.

[Sees v. Baber, 74 N.J. 201, 222, 377 A.2d 628 (1977) (citing Goldstein, Freud & Solnit, Beyond the Best Interests of the Child (1973)).]

See also Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 843, 97 S.Ct. 2094, 2109, 53 L.Ed.2d 14, 34 (1977)(“[B]iological relationships are not exclusive determination of the existence of a family.”).

Moreover, our judicial system has long acknowledged that “courts are capable of dealing with the realities, not simply the legalities, of relationships” and have adjusted the rights and duties of parties in relation to that reality. Dunphy, supra, 136 N.J. at 111, 642 A.2d 372 (recognizing standing of unmarried cohabitant in bystander liability ease); see also Crowe v. DeGioia, 90 N.J. 126, 133, 447 A.2d 173 (1982) (recognizing enforceability of support agreement between non-married cohabitants). As the Appellate Division aptly noted: ‘When social mores change, governing statutes must be interpreted to allow for those changes in a manner that does not frustrate the purposes behind their enactment.” Adoption of Two Children by H.N.R., 285 N.J.Super. 1, 10, 666 A.2d 535 (App.Div.l995)(quoting Adoptions of B.L.V.B. & E.L.V.B., 160 Vt. 368, 628 A.2d 1271, 1275 (1993)). See also J.A.L. v. E.P.H., 453 Pa.Super. 78, 682 A.2d 1314, 1320 (1996) (urging flexibility to adapt to interests of each child given advent of nontraditional families).

In other words, the nuclear family of husband and wife and their offspring is not the only method by which a parent-child relationship can be created. The values attached to family life, although properly attributed to the nuclear family model, can exist in other settings, including families created by unmarried persons regardless of their sexual orientation.

In the final analysis it is reality and not mere legality that should dictate who can be denominated as a psychological parent. Once the unique and profound parent-child bond is found to have been forged, the relationship between the psychological parent and the child is, for all intents and purposes, that of parent and child. It is only against that backdrop that the legal notion of psychological parenthood can be fully comprehended.

For affirmance — Chief Justice PORITZ and Justices O’HERN, GARIBALDI, STEIN, COLEMAN, LONG and YERNIERO — 7.

Opposed — None.

1 See Negron v. Llarena, 156 N.J. 296, 716 A.2d 1158 (1998)(reflecting that author of majority opinion is free to add remarks in concurring opinion).